# Native American Graves Protection and Repatriation Act Systematic Processes for Disposition or Repatriation of Native American Human Remains, Funerary Objects, Sacred Objects, and Objects of Cultural Patrimony > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2023-27040 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** December 13, 2023 - **Citation:** 88 FR 86452 ## Text DEPARTMENT OF THE INTERIOR Office of the Secretary 43 CFR Part 10 [NPS-WASO-NAGPRA-NPS0036506; PPWOCRADN0-PCU00RP14.550000] RIN 1024-AE19 Native American Graves Protection and Repatriation Act Systematic Processes for Disposition or Repatriation of Native American Human Remains, Funerary Objects, Sacred Objects, and Objects of Cultural Patrimony AGENCY: Office of the Secretary, Interior. ACTION: Final rule. SUMMARY: This final rule revises and replaces definitions and procedures for lineal descendants, Indian Tribes, Native Hawaiian organizations, museums, and Federal agencies to implement the Native American Graves Protection and Repatriation Act of 1990. These regulations clarify and improve upon the systematic processes for the disposition or repatriation of Native American human remains, funerary objects, sacred objects, or objects of cultural patrimony. These regulations provide a step-by-step roadmap with specific timelines for museums and Federal agencies to facilitate disposition or repatriation. Throughout these systematic processes, museums and Federal agencies must defer to the Native American traditional knowledge of lineal descendants, Indian Tribes, and Native Hawaiian organizations. DATES: This rule is effective January 12, 2024. Comments on the information collection requirements in this final rule must be submitted to the Office of Management and Budget by January 12, 2024. ADDRESSES: All public comments and attachments received, as well as supporting documentation used in the preparation of these regulations, are available online at https://www.regulations.gov in Docket No. NPS-2022-0004. Written comments and suggestions on the information collection requirements should be submitted by the date specified above in DATES to https://www.reginfo.gov/public/do/PRAMain. Find this information collection by selecting “Currently under Review—Open for Public Comments” or by using the search function. Please provide a copy of your comments to the NPS Information Collection Clearance Officer (ADIR-ICCO), 13461 Sunrise Valley Drive, Reston, VA 20191. Please include “1024-AE19” in the subject line of your comments. FOR FURTHER INFORMATION CONTACT: Melanie O'Brien, National NAGPRA Program, National Park Service, (202) 354-2201, melanie_o'brien@nps.gov. Questions regarding the NPS's information collection request (ICR) may be submitted to Phadrea Ponds, NPS Information Collection Clearance Officer, phadrea_ponds@nps.gov. Please include “1024-AE19” in the subject line of your email request. In compliance with the Providing Accountability Through Transparency Act of 2023, the plain language summary of the proposal is available on https://www.regulations.gov in the docket for this rulemaking. SUPPLEMENTARY INFORMATION: I. Background II. Summary of Public Comments and Responses A. General Comments B. Section 10.1 Introduction C. Section 10.2 Definitions for This Part D. Section 10.3 Determining Cultural Affiliation E. Subparts B and C F. Section 10.4 General G. Section 10.5 Discovery H. Section 10.6 Excavation I. Section 10.7 Disposition J. Subpart C K. Section 10.8 General L. Section 10.9 Repatriation of Unassociated Funerary Objects, Sacred Objects, or Objects of Cultural Patrimony M. Section 10.10 Repatriation of Human Remains or Associated Funerary Objects N. Section 10.11 Civil Penalties O. Section 10.12 Review Committee III. Response to Public Engagement and Request for Comments A. Public Engagement B. Requests for Comment C. Use of Received Feedback IV. Compliance With Other Laws, Executive Orders, and Department Policy I. Background On November 16, 1990, President George Bush signed into law the Native American Graves Protection and Repatriation Act (NAGPRA or Act) (25 U.S.C. 3001, et seq. ). The Act recognizes the rights of lineal descendants, Indian Tribes, and Native Hawaiian organizations (NHOs) in Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony. The Secretary of the Interior is responsible for promulgating regulations to carry out the provisions of the Act and delegated this authority to the Assistant Secretary. Since 1993, the Department of the Interior (Department) has published rules under the title “Native American Graves Protection and Repatriation Act Regulations” including: • RIN 1024-AC07, 1993 Proposed Rule (58 FR 31122, May 28, 1993) and 1995 Final Rule (60 FR 62134, December 4, 1995); • RIN 1024-AC84, Civil Penalties Final Rule (68 FR 16354, April 3, 2003) and Future Applicability Final Rule (72 FR 13184, March 21, 2007); • RIN 1024-AD68, 2007 Proposed Rule Disposition of Culturally Unidentifiable Human Remains (72 FR 58582, October 16, 2007) and 2010 Final Rule Disposition of Culturally Unidentifiable Human Remains (75 FR 12378, March 15, 2010); and • RIN 1024-AE00, Disposition of Unclaimed Cultural Items Final Rule (80 FR 68465, November 5, 2015). II. Summary of Public Comments and Responses The Department (we) published a proposed rule (RIN 1024-AE19) in the Federal Register on October 18, 2022 (87 FR 63202, hereafter 2022 Proposed Rule) to clarify and improve upon the systematic processes for disposition or repatriation of Native American human remains and cultural items. We accepted public comments for 90 days via the mail, hand delivery, and the Federal eRulemaking Portal at https://www.regulations.gov. After considering several requests for extensions of the public comment period beyond the original 90 days, we extended the comment period an additional 14 days until January 31, 2023. All comments received by the deadline are publicly available on https://www.regulations.gov, Docket No. NPS-2022-0004. During the comment period, we received a total of 206 submissions which included 181 individual submissions posted to the docket and 25 attachments as identified by the submitter. When necessary, we have cited to specific submissions as NPS-2022-0004-XXXX. We received submissions from a range of sources including individual members of the public, Indian Tribes, museums, and organizations. Table 1 shows the number of submissions by type of submitter. Table 1—Submissions Received by Submitter Submitter Submissions Individuals 95 Federally recognized Indian Tribes* 48 Museums 13 Museum or scientific organizations** 9 Native American organizations 8 Duplicate submissions 4 Indian groups without Federal recognition 3 Federal Advisory Review Committee 1 Native Hawaiian organizations 0 * Two submissions were on behalf of multiple Indian Tribes making the total number of Indian Tribes represented 55. ** These submissions are by professional organizations representing museums or scientific professionals and they are separate and distinct from the museums above. In these final regulations, we focus our discussion on changes from the 2022 Proposed Rule based on comments we received during the comment period and our further consideration of the issues raised. For background on the statutory and legislative history and case law relevant to these regulations, we refer the reader to the previously published rules under the title “Native American Graves Protection and Repatriation Act Regulations” referenced in I. Background. We reviewed and considered all comments prior to developing this final rule. We have provided 124 summaries of comments and our direct responses below; we combined similar comments where appropriate. Table 2 shows the largest number of comments by issue. Table 2—Top 10 Issues by Number of Comments Issue Number of comments See comment and response Changes to “affiliation” 102 Comment 58. to 61. Role of Indian groups without Federal recognition 53 Comment 3. and 39. See also Comment 91. and 114. Steps for consultation 53 Comment 64. Timelines under Subpart C 46 Comment 92. Require consent or consultation before allowing scientific study 45 Comment 15. Duty of care, including scientific study 44 Comment 12. to Comment 17. “Possession or control” 44 Comment 49. Specific steps in Subpart C 42 Comment 94. Purpose of this rule 42 Comment 9. “Consultation” 39 Comment 30. In addition, we received 109 comments generally supporting the regulations and the changes (see Comment 1.), and we received 96 comments on the estimated burden and information collection requirements for the revised regulations (see Comment 4.). We received 43 comments requesting action by the Department of the Interior outside of the scope of these regulations (see Comment 6.). Four comments requested changes in these regulations from business days to calendar days, which is significant in that it impacts all the timelines under this final rule (see Comment 19). In response to these comments and others discussed in detail below, we made the following major changes in the final rule: 1. Removed “geographical affiliation” in its entirety, simplified the process for cultural affiliation to provide that one type of information, including geographical information, is sufficient for cultural affiliation, and replaced “preponderance of the evidence” with “clearly or reasonably identify” (§ 10.3 Determining cultural affiliation). 2. Removed all reference to Indian groups without Federal recognition and prioritized the rights of federally recognized Indian Tribes in disposition and repatriation (§ 10.2 Definitions for this part “Indian Tribe” and §§ 10.7(d) Disposition and 10.10(k) Repatriation). 3. Required free, prior, and informed consent before any exhibition of, access to, or research on human remains or cultural items (§ 10.1(d) Duty of Care). 4. Extended the timeline to allow five years (rather than two as proposed) for museums and Federal agencies to consult and update inventories of human remains and associated funerary objects (§ 10.10(d) Repatriation). 5. Replaced “business days” with “calendar days” and extended deadlines as a result (§ 10.1(f) Deadlines). 6. Revised “consultation” to provide more instruction on goals and process (§ 10.2 Definitions for this part “Consultation”). 7. Removed the requirement for written requests to consult from Indian Tribes or NHOs, and therefore removed the requirement for a museum or Federal agency to respond within a set timeframe (§§ 10.4(b), 10.9(b), and 10.10(b) Initiate consultation). Despite receiving many comments, we have not revised the definitions or application of “possession or control” and “custody.” As in the Act, “possession or control” is a jurisdictional requirement for human remains or cultural items subject to these regulations and for repatriation (§ 10.2 Definitions for this part “custody” and “possession or control”). A. General Comments 1. Comment: We received 109 comments generally supporting these regulations and the overall goals of disposition or repatriation. Comments from individuals, including many students in high school, college, and graduate school, offered support for the general principle of returning ancestors and objects to lineal descendants, Indian Tribes, and NHOs. Museum and museum and scientific organizations supported the overall goals to clarify and improve upon the systematic processes for disposition and repatriation. A few comments from museums focused on the impact the revised regulations would have on the museum profession. One comment stated “Overall, the language in the proposed draft reflects contemporary best practices around repatriation and codification in 43 CFR part 10 makes sense in an effort to standardize repatriation activities across diverse institutions, agencies, and Tribes” (NPS-2022-0004-0129). Another museum commented: A fundamental shift in priorities is necessary at institutions who have fallen short in their efforts to comply with the legislation's intent. It is time for institutions to prioritize this work, in both the allocation of resources and the ethical commitment to genuinely engage in consultation with Native Nations. The passage of these proposed revisions is a necessary step towards addressing the legacy of colonial injustices imposed upon Indigenous Peoples in the United States (NPS-2022-0004-0115). Many Indian Tribes and Native American organizations also expressed appreciation and support for the revisions and felt the changes better reflected Congressional intent. One Indian Tribe stated: We appreciate the difficult work and coordination the Department has undertaken to make vast and meaningful changes to shift the burden of NAGPRA compliance to where it belongs—to federal agencies and museums. We explain below several changes that we support. While in the interest of brevity, we focus our comments on areas of concern, the Department should understand that our Tribes welcome this proposed rule. With our comments below addressed, we believe the new regulations will better implement NAGPRA and facilitate the repatriation of our Ancestors and sacred objects as Congress intended (NPS-2022-0004-0158). DOI Response: As discussed more fully throughout this document, we agree with many of these statements; and, as a result, we are publishing this final rule. We appreciate the comments from individuals, especially from students, not only for supporting this effort but for engaging in the rulemaking process. We appreciate the supportive, yet constructive comments from museums and museum and scientific organizations. We are indebted to the many Indian Tribes who provided comments as well as those who provided input during consultation throughout the process of developing these regulations. 2. Comment: We received nine comments generally objecting to the changes to these regulations. One comment stated the process was more of a political statement than a necessity. One comment supported the idea of clarifying the repatriation process but felt the proposed rule would undermine existing efforts and result in a rushed, transactional process. One comment felt the proposed regulations would hinder meaningful consultation and impede the progress that museums, Indian Tribes, and NHOs have made so far. One comment believed the revisions compounded difficulties that both museums and Indian Tribes already face and would reduce efficiency rather than improve it. One comment stated that in addition to a lack of statutory authority for some of the revisions, the Department had not identified any inadequacies or difficulties in the existing regulations, particularly with respect to Subpart B. One comment saw the revisions as a reversal rather than a strengthening of Congressional intent and stated that, as the drafted, the revisions are “based upon `restorative justice' rather than the words and intent of Congressional legislation, [and] has gone too far.” The comment stated the revisions reflected a larger cultural shift and that Native activist groups “have urged aggressive claims for repatriation and demanded that [T]ribal permission be sought for the transfer of objects long in legal circulation” (NPS-2022-0004-0188). Three comments from Indian Tribes expressed concerns that the revisions would slow down or even stop the work of repatriation. All three comments believed the revisions are too extensive and too complex and will, ultimately, create more issues than the revisions resolve. One of these comments was especially concerned that the revisions did not address two central and persistent issues that Indian Tribes have long asked for: enhanced enforcement and protection of private information. DOI Response: As discussed more fully throughout this document, we disagree with many of these statements; and, as a result, we are proceeding with publication of this final rule despite these objections. These regulations reflect and implement the legal requirements established by Congress. We understand that some of the timelines under this final rule will require faster action by museums and Federal agencies than under the existing regulations. However, certain deadlines can be extended or actions delayed, provided the appropriate lineal descendant, Indian Tribe, or NHO has agreed to extend or delay the process. We believe the changes in these regulations will enhance meaningful consultation and ensure that resulting efforts are based on consensus or agreement. We believe that the increased transparency and communication required by these regulations will resolve some of the existing challenges faced by all parties. As discussed in more detail throughout this document, these revisions are within the Secretary's statutory authority and based on over 30 years of input, comment, and experience in implementing the Act. As reflected in the supportive comments above, these revisions reflect best practices and changes in the wider professional disciplines, while at the same time adhering to the language and limits provided by Congress. We have incorporated requests from Indian Tribes and NHOs to the maximum extent possible, but we do not believe these revisions will stop the work of repatriation or create more issues than are resolved. We do anticipate that the work of repatriation may be slowed as all parties adjust to the revisions in these regulations and especially as all parties re-evaluate past practices considering these simplified, clarified, and streamlined regulations. We reiterate here, as we have throughout this document, that the goal of this final rule is to clarify and improve the systematic processes for disposition and repatriation by making the requirements clear to all parties involved. 3. Comment: We received 53 comments on the standing of Indian groups without Federal recognition under these regulations. Of that total, 40 comments supported giving standing to Indian groups without Federal recognition while 13 comments opposed it. Some comments also suggested changes to 25 CFR part 83 to recognize more groups and that the National NAGPRA Program should help educate groups on how to achieve Federal recognition. DOI Response: The recognition process and training concerning it are outside the scope of these regulations. Furthermore, as discussed below under that definition, these regulations cannot expand the definition of “Indian Tribe” beyond that provided in the Act. Indian groups without Federal recognition, including State recognized tribes, are not completely excluded from the disposition or repatriation processes. As is the current practice, Indian groups without Federal recognition can work with federally recognized Indian Tribes as part of a joint claim for disposition or joint request for repatriation. See also Comment 39. 4. Comment: We received 96 comments about the estimated burden and related information collection requirements of the proposed regulations. Of that total, nine comments supported some part of the burden estimate, including agreeing that there is a wide variation in the actual time required because of differences in size and complexity of the required responses. Two of these comments supported the overall burden estimate and agreed that the changes would yield long-term savings, despite the short-term increased costs. Five of these comments agreed that the collection of information is necessary and has a practical utility. One comment specifically stated the information collected had no practical utility and should not be required. Five comments suggested one way to minimize the burden of these regulations was for the Department to provide online resources to assist with identifying Indian Tribes with potential cultural affiliation. Eighteen comments generally objected to the burden estimate. Many of these comments felt the methods and assumptions were flawed and did not reflect the actual amount of effort required to comply with these regulations. Several comments stated that the proposed regulations significantly expanded the administrative, staffing, and financial burdens already imposed on museums and Federal agencies and that museums and Federal agencies are already facing capacity and resource limitations that prevent them from completing the already burdensome requirements under the existing regulations. Five comments stated that, regarding the quality, utility, and clarity of the information to be collected, there was a disconnect between oral statements by the National Park Service staff and the proposed regulations on the requirements for consultation and reporting (see NPS-2022-0004-0081). A few comments stated additional financial resources must be provided before any additional tasks can be required and that it was unreasonable and misguided to expect museums and Federal agencies to comply without providing additional funds. Two comments stated that the estimates should not rely on responses from the last three years to estimate costs due to the pandemic. One comment requested that the General Accountability Office estimate the costs of the proposed regulations. One comment questioned the authority of the Department to collect information that could be used to monitor the repatriation process. A total of 31 comments specifically discussed the impact of these regulations on Indian Tribes and NHOs and suggested some possible solutions to lessen the burden. Of that total, 18 comments suggested the Department create a dedicated grant program for Indian Tribes and NHOs. One of these comments expressed that museums have been wasting grant funds on unnecessary tasks since 1994 and more grant funding should be provided to Indian Tribes and NHOs. Five comments felt the burden on Indian Tribes and NHOs in these regulations was underestimated, too high, or prohibitively expensive. One comment from an individual stated the burden on Indian Tribes and NHOs could not be minimized with technology due to a general lack of access to the internet in Indian Country. One comment requested the regulations provide more funding as well as flexibility for Indian Tribes to engage with repatriation at their own pace. Seven comments questioned the costs to Indian Tribes under Subpart B of the proposed regulations, which some estimated to be $40 million per year. Eighteen comments provided input or alternative estimates for specific tasks. Two comments believe tasks are missing from the estimate, such as documentation review, correspondence after consultation, travel arrangements, hosting arrangements, inventory/packet/documentation preparation, room setup, consultation participation, documentation of consultation, administrative requirements, moving items to or from storage, and implementation of care guidance. One comment stated the costs of physical transfer should be included and, for a large repatriation, staff time alone can exceed $100,000 for physical transfer. Two comments stated the estimate for initiating consultation should be much higher, from 40 hours to at least 140 hours, to include the time required to identify consulting parties, prepare, and distribute letters or emails, and to make follow up phone calls. One comment suggested the estimate for conducting consultation be increased to provide for staff to retrieve collections from storage and travel by many representatives (sometimes up to ten people) from Indian Tribes or NHOs to conduct a physical review. Three comments stated the estimate for completing an inventory was too low as even an inventory update was an enormous undertaking that required significant time and resources. One of these comments noted that a previously prepared inventory did not reduce the necessary time, as previous inventories are generally “woefully inadequate.” One of these comments stated that, based on experience, it takes 10 hours to inventory one box plus an additional 6-8 hours to describe each individual or object in the box and an additional 40 hours per site to produce a final report. The comment estimated that for 200 boxes, it would take 2,000 hours to inventory the boxes, and this did not include additional time to describe each object or write a site report (NPS-2022-0004-0125). One comment stated the estimate for a summary was also underestimated and stated it takes anywhere from 6 months to two years to prepare a summary and then an additional six months for illustration and documentation of the objects. Five comments believe the estimate for preparing notices (either for inventory completion or intended to repatriation) were underestimated. One of these comments estimated it takes 120 hours to facilitate a notice of inventory completion plus additional time to verify the information with a physical review. Four of these comments suggested that for each notice type, the minimum amount of time required was 2 hours while the maximum amount of time was between 10 and 30 hours per notice, plus additional time to consult on the draft notice. One comment stated evaluating competing requests and resolving stays of repatriation required significantly more time, estimating between 100 and 1,000 hours, especially when considering the involvement of legal departments, executives, and board members in those tasks. Two comments stated the rate used to calculate costs should be $100 to $120 per hour. Fourteen comments provided estimates for the total costs of Subpart C of these regulations. For Indian Tribes and NHOs several estimated a cost of $17.2 million per year. For museums and Federal agencies one comment estimated $19.4 million per year. The two estimates were developed by one individual, using grant awards from 2011 to 2021 to estimate the average cost for a notice of inventory completion ($14,416 per notice). After calculating an estimated cost for museums and Federal agencies to comply with the proposed regulations, the estimate calculated the costs for Indian Tribes and NHOs by using the percentage of funding awarded in grants from 2011-2021 to museums (58%) and Indian Tribes or NHOs (42%) to estimate a total burden for the proposed regulations at $91.4 million over 30 months or $36.6 million per year (see NPS-2022-0004-0174). Other comments estimated a total for museums only between $25 million and $118 million per year. One museum provided a variety of estimates based on current project budgets which ranged from $200,000 to $500,000 per project per year for one museum. The comment estimated the burden for the single museum at 19,000 hours per year ($1.273 million per year per museum assuming an hourly rate of $67/hour). When applied to all 407 museums that will be required to update inventories under these regulations, that amounts to the highest estimate of $518.1 million per year for museums alone, although the comment noted that not all museums will require the same number of hours). The same comment questioned how the Department estimated that the proposed regulations do not impose an unfunded mandate on State, local, or [T]ribal governments or the private sector of more than $100 million per year (see NPS-2022-0004-0125). One comment detailed the hours involved in one part of a two-part project over 15 months. The first phase of the project included 13 consultation meetings which required hundreds of hours of time by Indian Tribes and museum staff, including hundreds of phone calls. Consultants hired to develop and complete the first phase of the project spent thousands of hours on the first phase and travel expenses totaled $3,000. In the first phase, 31 notices of inventory completion were published, although the comment stated that the number of notices could be irrelevant as each notice involved a single group of Indian Tribes and one museum and could have been a single notice. The first phase of the project covered 1,021 individuals and 11,590 associated funerary objects. The comment noted that these estimates do not include the hours involved in preparation of the original inventory of human remains and associated funerary objects completed in the early 1990s. Although a total estimated cost for this phase of the project was not provided, elsewhere the comment suggested at minimum $100 to $120 an hour should be used in dollar estimates (see NPS-2022-0004-0135). Using the lower hourly figure and the number of hours provided, the estimate for the first phase of the project is $123,000 over 15 months or $98,400 per year. When applied to all 407 museums that will be required to update inventories under these regulations, it equals an estimated $40 million per year for museums. DOI Response: We appreciate the specific input on the estimated costs for certain requirements in these regulations. We have addressed many of these comments in the revised Cost-Benefit and Regulatory Flexibility Threshold Analyses for the final regulations. We reiterate that the Department believes the short-term increased costs of these regulations are justified by the associated long-term quantitative and qualitative benefits. We believe the information collected under these regulations is necessary and any information collected by the Department under these regulations is required by the Act for administrative purposes (such as publishing notices) and is not used for monitoring or evaluating the quality of that information. The Department will develop and provide templates for all information collection requirements, and we will provide additional resources to assist with identifying consulting parties to minimize the burdens of these regulations, as discussed further in Comment 95. Any changes to the amount of available funding through grants are beyond the scope of these regulations and are the purview of Congress and the appropriations process. We cannot limit the grant awards to only Indian Tribes and NHOs as that would be inconsistent with the Act. Regarding the hourly rate used to calculate costs, we used the Bureau of Labor Statistics (BLS) News Release USDL-23-1305, March 2023 Employer Costs for Employee Compensation—released June 16, 2023 ( https://www.bls.gov/news.release/ecec.nr0.htm, accessed 12/1/2023). This is a standard source we have used in estimating the burden of these regulations as a part of our compliance with the Paperwork Reduction Act. Any person equates to Civil workers. Table 2 lists the hourly rate for full-time workers as $43.07, including benefits. Lineal descendants equate to Private Industry Workers: Table 6 lists the hourly rate for all workers as $40.79, including benefits. Any Affected Party, Indian Tribes/NHOs, Federal agencies, and museums equates to State and Local Government Workers. Table 3 lists the hourly rate for Professional and related Workers as $67.01, including benefits. Regarding the impact of these regulations on Indian Tribes and NHOs, we anticipate a change in how grant funds are awarded due to the changes in these regulations. During the first five years after publication of the final regulations, grant funds will likely continue to go to consultation and documentation projects to consult and update inventories. After five years, we anticipate more grant funds will be requested by Indian Tribes or NHOs for repatriation assistance or for making requests for repatriation. As noted in Comment 102, the Notice of Funding Opportunity for NAGPRA grants is where any changes to the allowable activities for grants will be made. We do not intend to impose requirements on lineal descendants, Indian Tribes, or NHOs to respond to invitations to consult or to submit claims for disposition or requests for repatriation. Those are actions that lineal descendants, Indian Tribes, and NHOs may choose to take but are not required. We agree there are new requirements for Indian Tribes to take certain actions under Subpart B that under the existing regulations are voluntary. We disagree that all those requirements under Subpart B are new, and we strongly disagree with the estimate provided. As discussed in Comment 70 and Comment 83, we disagree that the Act, the existing regulations, or any other regulations designate that the BIA is responsible for discovery, excavation, and disposition on Tribal lands in Alaska and the continental United States. We agree that Indian Tribes have discretion under the existing regulations in responding to a discovery on Tribal lands and that the final regulations will require Indian Tribes to respond to discoveries on Tribal land. This is to improve consistency with the Act and clarify the responsibilities in these regulations. We understand that in some cases these responsibilities may exceed the capacity or resources of an Indian Tribe, and in those cases, the Indian Tribe can delegate these responsibilities to the Bureau of Indian Affairs or another Federal agency with primary management authority. Lastly, we note that Tribal laws, policies, and administrative capacity vary greatly, and the comments do not seem to take that into account by applying a blanket assumption of the same cost for each Indian Tribe. The comments also do not consider the small number of actions on Tribal lands per year, which is not likely to significantly change based on the final regulations. Regarding the alternative estimates provided by some comments, we believe that any estimate based on current practice or past grant awards is inherently flawed and does not account for the specific objective of the proposed and final regulations to simplify and improve the systematic processes within specific timeframes. We understand that our estimates do not reflect the actual amount of time some museums and Federal agencies currently spend on compliance with these regulations. We strongly disagree, however, that our estimates do not reflect what is required by these regulations. In the 33 years since the passage of the Act, each museum or Federal agency has approached the requirements of these regulations in different ways, and, as a result, there is a wide variation in how much time and money is spent to comply with these regulations. As noted in the proposed regulations and elsewhere in this document, one of our goals in revising the regulations is to improve efficiency and consistency in meeting these requirements. Necessarily, this will mean a difference between our estimated costs for these regulations and current practices. While we understand the objections to our estimates and the concerns about insufficient funding to carry out these requirements, the Secretary, the Assistant Secretary, and the Department are committed to changing the implementation of the Act and to clearing a path to expeditious repatriation as Congress intended. Concerns about the financial burden of the Act and these regulations on museums were expressed even before the Act was passed. In discussing the key compromises made to the final bill in 1990, Representative Campbell stated that limiting the inventory requirement to only human remains and associated funerary objects “will go a long way to reduce cost to museum and at the same time encourage both sides to sit down early together to discuss their options” (136 Cong. Rec. 31938). With this change and the authorization of a grant program to assist museums with the inventory requirements, the Association of American Museums and the Antique Tribal Arts Dealers Association withdrew their objections to the final legislation. As envisioned by Congress, most of the requirements for repatriation under the Act should have been completed by 1995, although extensions were authorized in some cases. In 1990, the Congressional Budget Office (CBO) reviewed the Act and estimated the legislation would cost between $20 million and $50 million over five years. The main costs of the Act were in preparing inventories of human remains, estimated between $5 million and $30 million over five years, “for museums to provide [T]ribes with the basic information required by the bill.” The CBO acknowledged that to some extent, “the total cost is discretionary—the more funds made available, the more accurate and comprehensive will be the information collected by museums.” More extensive and expensive studies might be required for some human remains, but, as the CBO noted, such studies were not required by the Act. CBO noted that “If museums were required to identify all of their holdings definitively, the costs of this bill would be significantly higher than the $30 million estimate.” The other $15 million to $20 million in estimated costs were for identifying funerary objects and completing summaries as well as for Indian Tribes to make claims and repatriate human remains or cultural items (H. Rpt. 101-877, at 21-22). After nearly 33 years of implementation, the total cost of repatriation is clearly discretionary, and, in addition to funds, the more time that has been available to complete an inventory of human remains, the more comprehensive, extensive, and expensive the inventories have become. After meeting the initial deadline for inventories in 1995, many museums and Federal agencies have continued to update inventories at their own discretion, going beyond what is required by the Act and the existing regulations. Under the Act and the existing regulations, an inventory of human remains only requires use of “information possessed by such museum or Federal agency” (25 U.S.C. 3003(a)). Yet, despite the minimum requirements, hundreds of museums and several Federal agencies submit updated inventories each year. The number of museums updating inventory data is relatively large and accounts for multiple submissions each year from a single museum because the data is updated on a case-by-case basis at the discretion of the museum. Since 1993, the Department has provided estimated hours for tasks under these regulations as a part of its compliance with the Paperwork Reduction Act. These estimates are far below the estimates provided by some comments, but these estimates have been consistently used by the Department and reflect what the Department believes is required by the Act and these regulations. The 1993 Proposed Rule included an estimate of “100 hours for the exchange of summary/inventory information between a museum or Federal agency and an Indian [T]ribe or Native Hawaiian organization . . .” (58 FR 31124). From 1993 until publishing the proposed regulations in 2022, we continued to use the estimate of 100 hours per museum for a new summary or inventory. This is far less than the comment that stated a museum spends 19,000 hours per year on its inventory and summary and related tasks. The 1993 Proposed Rule included an estimate of “six hours per response for the notification to the Secretary, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collected information” (58 FR 31124). In 2012, we increased this estimate to 10 hours per notice. This is less than the estimate provided in the comments of 120 hours to facilitate a notice, including gathering and maintaining data and reviewing and verifying the information, or the estimated range of two hours to 30 hours, for a median of 16 hours, to just complete the notice template. The estimate based on previous grants suggests a notice costs $14,416 each which equates to between 120 hours and 225 hours per notice, depending on the hourly rate applied. We agree with the one comment that stated the number of notices is irrelevant to estimating the burden involved. Although not explicitly stated in the existing regulations, the final regulations clearly state that museums or Federal agencies may include in a single notice all human remains and associated funerary object having the same lineal descendant or cultural affiliation for efficiency and expediency. The comment that stated 31 notices could have been combined in to one notice demonstrates the discretion museums and Federal agencies exercise in complying with these regulations. The 2010 Final Rule added a new estimate related to the new regulatory requirements. Under the regulations, museums and Federal agencies were required to (1) provide to Indian Tribes and NHOs a list of Indian groups without Federal recognition that may have a relationship to human remains and associated funerary items and (2) request from Indian Tribes and NHOs the temporal and/or geographic criteria used to identify the groups of human remains to be included in consultation. The estimated burden on museums for this collection of information was 30 minutes total, including time for reviewing existing data sources, gathering and maintaining data, and preparing a transmission to other consulting parties. In the 2022 Proposed Rule, we renamed this requirement “Initiating consultation and requesting information,” and we increased the estimated time required to range from less than one hour, or 0.50 hours, up to 5 hours, or a median of 2.75 hours. This is far less than the comments that suggested this should be much higher and range from 40 hours to 140 hours, or a median of 90 hours to initiate consultation and request information. In preparing the Cost-Benefit and Regulatory Flexibility Threshold Analyses for the 2022 Proposed Rule, we accounted for all actions that are required under the existing regulations to calculate the baseline conditions. We disagree that our estimate is missing required tasks, and the tasks identified by comments as missing are generally included in the estimate for conducting consultation. The costs of conducting consultation vary greatly, depending on the size and complexity of the consultation. However, we note that consultation does not require any specific documentation beyond what was already prepared in the initial summary or inventory. The additional tasks of inventory/packet/documentation preparation or even moving items from storage for purposes of consultation are not required by the regulations. A physical inspection of a collection is not required by these regulations, although we understand that for some museums, lineal descendants, Indian Tribes, or NHOs, in person consultation is preferred. As for the costs of physical transfer, we address this further in Comments 51 and 66 in this document. Physical transfer, and any costs that accompany that effort, are not required by these regulations, and we note that grants are provided specifically for assisting with the costs of physical transfer. As these comments clearly emphasize, the burden estimates vary widely. In its 1990 evaluation of the Act, the Congressional Budget Office made a similar conclusion, noting “[t]here is considerable disagreement about the nature of the inventory required by H.R. 5237,” and widely varied estimates of costs. In the end, the CBO estimated only $5 million to $30 million over five years would be required which reflected the “costs of an inventory of museums' collections, as well as a review of existing information to determine [Tribal] origin” (H. Rpt. 101-877, at 22). 5. Comment: We received 25 comments expressing concerns for the protection of sensitive information in the regulations. Some comments suggested use of the Privacy Act and the Archeological Resources Protection Act (ARPA) to withhold information about human remains and cultural items. Other comments suggested changes to the regulations to require that museums and Federal agencies keep sensitive information confidential. DOI Response: While we appreciate the suggestions, we cannot make the requested changes. First, neither the Privacy Act nor ARPA apply. Deceased individuals do not have any Privacy Act rights, nor do executors or next-of-kin. See, generally, OMB 1975 Guidelines, 40 FR 28, 40 FR 951 (also available at https://www.justice.gov/paoverview_omb-75, accessed 12/1/2023) (stating “the thrust of the Act was to provide certain statutory rights to living as opposed to deceased individuals” and “the Act did not contemplate permitting relatives and other interested parties to exercise rights granted by the Privacy Act to individuals after the demise of those individuals”). Similarly, the exemption from disclosure under ARPA applies specifically to “the nature and location of any archaeological resource for which the excavation or removal requires a permit or other permission under [ARPA] or under any other provision of Federal law” (16 U.S.C. 470hh(a)). Thus, the ARPA provision is directed to archaeological resources that would require a permit for excavation or removal, which applies to some but not all human remains and cultural items under the Act and these regulations. In the proposed regulations and in these final regulations, the Department has taken steps to remove requirements for museums or Federal agencies to disclose sensitive information in an inventory, summary, or notice. While we cannot dictate how a museum or Federal agency responds to a request for disclosure of sensitive information, we encourage a museum or Federal agency, at the request of a lineal descendant, Indian Tribe, or NHO, to ensure that information of a particularly sensitive nature is not made available to the public. Since 1995, the Department has recommended museum or Federal officials ensure that sensitive information does not become part of the public record by not collecting, or writing down, such information in the first place (1995 Final Rule, 60 FR 62154). 6. Comment: We received 43 comments requesting additional action by the Department of the Interior outside of these regulations. Of that total, nine comments requested the Department impose NAGPRA-related conditions on any museum that received any Federal grant. Seven comments requested the Department move the National NAGPRA Program out of the National Park Service. A total of 11 comments requested the Department conduct more consultation on these regulations before issuing final regulations; five comments requested consultation with only Indian Tribes and NHOs while six comments requested consultation with all constituents. Five comments requested further engagement with the Department on these regulations. Five comments requested the Department conduct or request an audit of the National NAGPRA Program, Federal agency compliance, or the grant program. Four comments requested the Department provide more information about the changes to these regulations, either through training or simplified documents outlining the changes. One comment requested the Department ensure its own bureaus follow these regulations. One comment requested the proposed regulations be withdrawn and the Department start a new effort to develop these regulations in consultation with Indian Tribes and NHOs. DOI Response: We appreciate the requests for additional action by the Department. We agree that additional information about changes to these regulations will be needed, and we plan on providing as many opportunities as we can for training sessions, discussions, and guidance documents once the regulations are effective. We welcome any other suggestions for how we can support museums, lineal descendants, Indian Tribes, or NHOs with these regulations. We are working to ensure all the bureaus within the Department of the Interior have adequate staffing and support to ensure compliance with these regulations. We decline to include in these regulations a requirement for imposing NAGPRA-related conditions on Federal grants. All Federal grant recipients are required to provide assurances that they will comply with all applicable requirements of Federal laws, regulations, and policies (see “Assurances for Construction/Non-Construction Programs (SF-424D and SF-424B)” at https://www.grants.gov/forms/forms-repository/sf-424-family, accessed 12/1/2023). While we cannot include the requested provisions in these regulations, we agree to work with the Office of Management and Budget to explore whether and how a NAGPRA-specific condition might be included in the general assurances required for all Federal grant programs. We decline to withdraw the proposed regulations or to engage in additional consultations at this time. We are committed to implementing the final regulations as soon as possible to ensure these long-overdue changes are implemented. Regarding the location of the National NAGPRA Program, we appreciate the input we received during Tribal consultation in 2021 and in response to the proposed regulations. Currently, we have not decided about the future location of the National NAGPRA Program. Regarding the requests for an audit of the National NAGPRA Program, Federal agency compliance, or the grant program, all Federal agency programs, including the National NAGPRA Program, Federal agency NAGPRA programs, and the NAGPRA grant program, are subject to regular internal control reviews under the Office of Management and Budget Circular A-123, Management's Responsibility for Enterprise Risk Management and Internal Control (revised 7/15/2016). Along with other management and performance evaluation processes, the National NAGPRA Program and all Federal agency programs undergo routine and regular review. We will continue to consider the need for additional management oversight. 7. Comment: We received 22 comments concerning how the regulations should balance the interests of, on the one hand, repatriation, and on the other hand, scientific study. Of that total, 17 comments outright objected to the regulations giving museums or Federal agencies decision-making authority for disposition or repatriation. Thirteen of these comments, which came from one submission, asserted that decisions on cultural affiliation, evaluation of requests, repatriation, and competing requests should be in the hands of the appropriate Indian Tribes or NHOs and not museums and Federal agencies (see NPS-2022-0004-0157). Four comments provided similar sentiments. One comment requested that an independent authority evaluate decisions made by museums and Federal agencies. One comment noted that despite positive changes, the proposed regulations still had not truly shifted the burden of having to prove the identity or cultural affiliation of human remains or cultural items off Indian Tribes or NHOs because the regulations did not give the power of decision making to Indian Tribes or NHOs. By contrast, two comments objected to the proposed regulations claiming that they eliminate the balance of interests that Congress intended when it passed the Act. Both comments referenced or quoted from statements made by Senators Inouye and McCain in 1992, to the effect that the Act represents a balance between scientific study and respectful treatment of human remains and cultural items. One of these comments stressed that the proposed regulations were inherently imbalanced because they were developed through consultation only with Indian Tribes and NHOs and not with museums, scientific organizations, and Federal agencies (see NPS-2022-0004-0150). Citing to “. . . words such as `balance' and `compromise' [in] describing the law in a special issue of the Arizona State Law Journal published shortly after the bill was passed (vol. 24, 1992),” the other objecting comment stated, “[i]n my view, a rule published in 2010 (43 CFR 10.11) began to move NAGPRA away from the balance that Congress intended. The new regulations proposed here would make that balance go away entirely” (see NPS-2022-0004-0172). Three comments directly refuted the two objecting comments as gross misrepresentations of the Act. One of these comments concluded that the imbalance is because the Act vests decision making with museums and Federal agencies and stated “where there is disagreement between institutions and Tribes regarding affiliation, it requires that the Tribes take extraordinary lengths to press claims. The challenge is, can this rule or any rule really overcome the inherent imbalance in the Act?” (see NPS-2022-0004-0129). Another comment supported the proposed regulations in trying to shift the balance more toward Indian Tribes and NHOs because, since 1990, repatriation has been too slow, and the burdens placed on Indian Tribes and NHOs has been too great. The comment supported the proposed regulations as representing the “continued evolution to ensure NAGPRA's relevance to its true constituents-Indian [T]ribes and Native Hawaiian organizations” (see NPS-2022-0004-0080). A third comment refuting the objecting comments stated: Though some argue that repatriation is a weighing of interests between science and human rights, that interest is absent from the Act, which is singularly aimed at providing restitution. The Act creates an administrative process for repatriation and disposition to provide restitution for harms that have been called out by Congress as genocide and human rights violations. The only exception the Act provides to repatriation is when a museum or agency can prove that they have a “right of possession.” Even permitting completion of a scientific study of major benefit to the United States does not prevent repatriation, and will only delay it. 25 U.S.C. 3005(b). Museums—even well-funded ones—have admitted that they will not be proactive with their CUI inventories, even with the NAGPRA funding they request, and that instead, they will continue to work to overcomplicate the process, based on the current regulations and criteria outlined there. Thus, it is imperative that the Secretary take over this duty and correct the Ancestors and their belongings that languish under a label called “unidentifiable” (NPS-2022-0004-0153). DOI Response: Nowhere in the Act did Congress say that decisions about disposition or repatriation are made by balancing the interests of science against the interests of human rights. While we are aware of the statements made by Senators Inouye and McCain in 1992, we understand those statements to say that the Act itself is the product of balancing these interests. The lengthy process of developing, drafting, and agreeing to the language of the Act is how Congress ensured a balance between scientific study and respectful treatment of human remains and cultural items. To ensure all information related to the Congressional record is available, the documents that provide legislative intent are available on the National NAGPRA Program website ( https://www.nps.gov/subjects/nagpra/the-law.htm, accessed 12/1/2023). Beyond the two reports, the Congressional Record provides statements by individual members of Congress. In the Senate, Senator Inouye's full statement is available in the Congressional Record Senate (October 26, 1990) on page 35678-35679. Senator McCain's opening statement is on the preceding page 35677. A discussion of the impact of the legislation on development activities on Federal lands by Senators McCain and Simpson is on page 35679-35680. In the House, Representatives Campbell (D-CO), Rhodes (R-AZ), Collins (D-IL), Richardson (D-NM), Bennett (D-FL), Mink (D-HI), and Udall (D-AZ) provided statements in the Congressional Record House (October 22, 1990) on pages 31937-31941. We agree with the objecting comments that the Congressional record is replete with references to the balance, compromise, and agreement in both the process to develop the Act and in the content of the Act itself. We agree with the objecting comments that the Act creates a balance, but we believe that the balance is built into the Act itself through compromises made in the Act before its final passage. The objecting comments appear to indicate that the balance Congress intended comes in only repatriating some human remains and even fewer associated funerary objects (as suggested by the objecting comments reference to the 2010 Final Rule) or that in each decision on disposition or repatriation, a museum or Federal agency must balance the interests of science with those of human rights. We disagree with this interpretation of the legislative history. The Congressional record of the House clearly identified “points of compromise” in the final version of the Act. Representatives Campbell and Richardson stated the Act represents a compromise on the following issues: 1. Limiting the inventory requirement to only human remains and associated funerary objects rather than all Native American collections; 2. Clarifying the definition of cultural affiliation to incorporate anthropological and archeological criteria ( i.e., traced historically or prehistorically); 3. Adding a standard of repatriation for unassociated funerary objects, sacred objects, and objects of cultural patrimony by defining “right of possession;” 4. Tightening the definitions of unassociated funerary objects and sacred objects; 5. Clarifying the definition of museum to not apply to private individuals who receive Federal payments such as social security; and 6. Balancing representation of the Review Committee to include all groups affected by the Act. Representative Campbell's statement included two other compromises in the final version of the Act: The bill takes into account that many of these items may be of considerable scientific value and allows for current studies to continue with repatriation occurring after the completion of such a study. It further acknowledges that repatriation is not the only alternative and I encourage all sides to try and work out agreeable compromises where all interested parties can benefit from access to some of the items (136 Cong. Rec. 31938, emphasis added). We agree with the last comment summarized above that the only exception to expeditious repatriation under the Act is proving a “right of possession” (25 U.S.C. 3005(c)). Any need to complete a scientific study does not prevent repatriation but only delays it (25 U.S.C. 3005(b)). In addition, we note that any need to excavate human remains or cultural items on Federal or Tribal lands is only permitted after consultation (on Federal lands) or consent (on Tribal lands), and that regardless of any scientific study, disposition of human remains or cultural items to the appropriate lineal descendant, Indian Tribe, or NHO is always required (25 U.S.C. 3002(c)). Accordingly, we conclude that the objective of the systematic processes in the Act is the disposition or repatriation of human remains or cultural items, not to achieve any kind of balance between the interests of science and the interests of human rights. We intend these regulations to better align with the processes for disposition and repatriation found in the Act. In these regulations, we cannot remove the decision-making authority vested in museums and Federal agencies because doing so would be inconsistent with the Act. We can, and have, included requirements for museums and Federal agencies to consult, collaborate, and, in the case of scientific study or research, obtain consent from lineal descendants, Indian Tribes, or NHOs (see Comment 15). In addition, these regulations require museums and Federal agencies to defer to the Native American traditional knowledge of lineal descendants, Indian Tribes, and NHOs in all decision-making steps. In developing both the proposed and final regulations, we emphasized consultation with Indian Tribes and NHOs and incorporated comments from consultation to the maximum extent possible. This does not indicate an imbalance in the process to develop these regulations or in the resulting product, but rather reflects the special relationship between the Federal government and Indian Tribes and NHOs (25 U.S.C. 3010). Furthermore, while the Act is the primary authority for these regulations, Congress authorized the Secretary to make such regulations for carrying into effect the various provisions of any act relating to Indian affairs (25 U.S.C. 9). As the Act is Indian law ( Yankton Sioux Tribe v. United States Army Corps of Engineers, 83 F. Supp. 2d 1047, 1056 (D.S.D. 2000)), the Secretary may promulgate this provision under the broad authority to supervise and manage Indian affairs given by Congress ( United States v. Eberhardt, 789 F. 2d 1354, 1360 (9th Cir. 1986)). Finally, a statement in the Congressional record by Senator Inouye is directly relevant to the objective of these revised regulations to better reflect Congressional intent: This legislation is designed to facilitate a more open and cooperative relationship between native Americans and museums. For museums that have dealt honestly and in good faith with native Americans, this legislation will have little effect. For museums and institutions which have consistently ignored the requests of native Americans, this legislation will give native Americans greater ability to negotiate. Mr. President, I believe this bill represents a major step in correcting an injustice that started over 100 years ago. It is appropriate that Congress take an active role in helping to restore these rights to native Americans and I urge the adoption of this measure by the Senate (136 Cong. Rec. 35678). 8. Comment: We received two comments requesting the Department develop guidance and a framework to establish reburial areas for repatriated collections. The comments point to the U.S. Department of Agriculture, Forest Service, as an example of how land-managing Federal agencies can assist and support reburials on Federal lands. DOI Response: We appreciate the request, and we understand the significant issues involved with securing lands for reburial. While this request is outside the scope of these regulations, the Department will consider how guidance and policy might be used to effectuate the requested change. B. Section 10.1 Introduction 9. Comment: We received 42 comments on § 10.1(a) Purpose. Of that total, 18 comments supported the revised paragraph, specifically the inclusion of deference to lineal descendants, Indian Tribes, and NHOs in the purpose paragraph. An additional 19 comments, while generally supportive, also suggested changes to the paragraph. Suggested changes include adherence to the purpose as stated by Congress, emphasizing the limited exceptions to disposition or repatriation, a significant change to verb tense, and defining and referencing deference in the regulatory text. On the other hand, four comments specifically objected to the inclusions of deference in the purpose paragraph and expressed concerns about how deference applies when there are disagreements among Indian Tribes or when other requirements or definitions do not allow for deference to lineal descendants, Indian Tribes, or NHOs. One comment generally objected to the change in the purpose as an entire rewrite of the regulations that would impede the systematic repatriation process. DOI Response: We specifically requested input on the proposed purpose paragraph, and we appreciate the response and have made changes where permissible. As many comments indicate, the proposed purpose paragraph was not as clear or effective as we had intended. Although some comments suggested we delete the sentence on the rights the Act recognizes, we have retained the sentence given the number of supporting comments we received, but we have changed the verb tense as requested. We have revised the purpose paragraph as suggested by several comments to paraphrase the language used by Congress (H. Rpt. 101-877, at 8) which outlines the two separate processes for disposition and repatriation under the Act. The purpose paragraph uses plain language to describe the overall goals of these two separate processes for disposition and repatriation (protect and restore). In response to the objections and concerns about deference, we have included both consultation and deference as a part of the purpose for these regulations to ensure meaningful consideration of Native American traditional knowledge throughout these processes. It is through consultation and deference that these regulations ensure the rights of lineal descendants, Indian Tribes, and NHOs the Act recognizes. 10. Comment: We received four comments on § 10.1(b) Applicability. Three comments suggested editorial changes to the paragraph while one comment strongly supported the paragraph, especially with its focus on museums and Federal agencies as the applicable party. DOI Response: Considering the revisions to § 10.1(a), we have made changes to this paragraph to emphasize the applicable parties that are responsible for each major section of these regulations. We tried to make this paragraph clear that many parts of the Act and these regulations are not limited to Federal or Tribal lands. In response to other comments on the requirements of these regulations, we have clarified that lineal descendants, Indian Tribes, and NHOs are not required to consult or to make a claim for disposition or a request for repatriation. 11. Comment: We received two comments related to § 10.1(c) Accountability. One comment suggested requiring a duty of candor by museums and Federal agencies to disclose any human remains or cultural items that were destroyed, deaccessioned, lost, or in any other way removed from the provisions of these regulations. One comment suggested adding transparency to the accountability requirements. DOI Response: We cannot make the requested change regarding candor as it is contrary to the requirements of the Act. A museum or Federal agency must compile a summary of cultural items and an itemized list of human remains and associated funerary objects in its possession or control (25 U.S.C. 3003(a) and 3004(a)). Based on the information available, a museum or Federal agency must determine if human remains or cultural items that are destroyed, deaccessioned, lost, or in any other way removed are under its possession or control and therefore subject to these regulations. We note that in these regulations, as in the proposed regulations, a museum or Federal agency must ensure the summary and itemized list are comprehensive and cover any holding or collection relevant to § 10.9 and § 10.10. 12. Comment: We received five comments objecting to § 10.1(d) Duty of care because the requirements went beyond the statutory authority and should be recommendations not requirements. Some of these comments suggested that the costs to comply with this paragraph would be substantial, that additional curation and collections facilities may need to be constructed, and that conflicts might arise with standard curation, conservation, and preservation principles or practices. One comment questioned how conflicts among Indian Tribes should be handled. Another comment stated that research on human remains and cultural items is necessary to determine cultural affiliation and, therefore, the requirements in this paragraph conflict with the requirements in § 10.3. One comment suggested that “to the maximum extent possible” and “safeguard and preserve” should be replaced with “reasonable effort” and a cross-reference to requirements in 36 CFR part 79, respectively. DOI Response: We disagree that these requirements go beyond the statutory authority or that these requirements should only be recommendations. The Secretary's authority for promulgating these regulations is discussed extensively in other responses to comments (see Comment 7), the 2010 Final Rule (75 FR 12379), and the 2022 Proposed Rule (87 FR 63207). Given the number of supporting comments for this paragraph during consultation in 2021, including from the Secretary's Federal Advisory Review Committee (Review Committee), and comments on the proposed regulations requesting we strengthen these requirements (see Comments 13-17), we chose not to revise these requirements into recommendations. We strongly disagree with the comment that research on human remains or cultural items is required by the Act or these regulations to determine cultural affiliation or for any other purpose. Rather, the Act explicitly and specifically does not require new scientific studies or other means of acquiring or preserving information (25 U.S.C. 3003(b)(2)), and we have incorporated similar language into this paragraph to clarify (see Comment 16). Earlier drafts of these regulations referenced 36 CFR part 79, as suggested by one comment, but we received substantial negative feedback on this during consultation in 2021 and from the Review Committee. Most of that feedback felt the inclusion of 36 CFR part 79 in these regulations was confusing or concerning. Federal agencies and their repositories must still care for and manage collections that are covered by the provisions of 36 CFR part 79. Regarding speculation on substantial costs, conflicts with conservation and preservation principles, and conflicts among lineal descendants, Indian Tribes, or NHOs, the final regulations now require museums and Federal agencies to make a “reasonable and good-faith effort” to incorporate and accommodate Native American traditional knowledge in the storage, treatment, or handling of human remains or cultural items (see Comment 14). 13. Comment: We received 16 comments supporting § 10.1(d) Duty of care as proposed while 23 comments were generally supportive but suggested changes to strengthen the requirements. Many comments requested this paragraph clearly apply to all Native American collections, even those on loan or where specific cultural items subject to the Act have not been identified. Some comments specifically requested “custody” be deleted from the paragraph in line with requested changes to expand “possession or control” or that this paragraph clearly state that a museum or Federal agency only has a duty of care and does not have rightful ownership of Native American human remains or cultural items. Several comments requested a definition of “care for, safeguard, and preserve.” One comment requested this paragraph include a requirement for the National NAGPRA Program to make sporadic inspections of all museums and Federal agencies to ensure professional museum and archival standards are met, including physically securing collections through clean, rodent-free, and locked areas with limited access. One comment requested additional clarifying language to ensure these requirements do not serve as a justification to delay or avoid repatriation. One comment requested two additional paragraphs be included to require museums and Federal agencies to provide specific and detailed information on any study or research of Native American collections conducted after 1990, including copies of published work and photographs. DOI Response: We cannot require that this paragraph, or this part, apply to all Native American collections as that would be inconsistent with the Act (25 U.S.C. 3003(a) and 3004(a)). The requirements of this paragraph are limited to human remains and cultural items as defined by the Act and these regulations. We cannot remove “custody” from the first sentence and still ensure that this paragraph will apply to human remains and cultural items that are on loan but still subject to the Act (see the definitions of “custody” and “possession or control” discussed elsewhere). We have intentionally included “custody” in the duty of care requirement to ensure all Native American human remains and cultural items are cared for, safeguarded, and preserved until the disposition and repatriation processes are complete. However, the inclusion of museums or Federal agencies with “custody” is not intended to limit the ability of the museum or Federal agency with possession or control of the human remains or cultural items from carrying out its responsibilities under this paragraph or these regulations. We cannot include the requested statement on rightful ownership as it would be contrary to the provisions of the Act where a museum or Federal agency can prove it has a right of possession to a cultural item. We have not changed or defined “to care for, safeguard, and preserve,” and these terms should be understood to have a standard, dictionary definition. We believe these terms, along with paragraphs (d)(1), (d)(2), and (d)(3), are sufficient to ensure an adequate standard of care for human remains and cultural items, including that the human remains or cultural items are properly stored and physically secured in a clean and locked area and are reasonably believed to be safe from damage or destruction by pests or natural elements. We believe the timelines included in the disposition or repatriation processes ensure that these requirements will not be used to delay or avoid repatriation, and we note that any request for an extension of the deadlines for repatriation or for a stay of repatriation for scientific studies would require consultation with and consent of the appropriate lineal descendant, Indian Tribe, or NHO. While we appreciate the suggestion to require information on any past research or study be provided to lineal descendants, Indian Tribes, or NHOs as a part of a duty of care, this provision is already provided for in §§ 10.9(c)(4) and 10.10(c)(4). Under the Act and these regulations, lineal descendants, Indian Tribes, and NHOs have a right to request records, catalogues, relevant studies, or other pertinent data (25 U.S.C. 3003(b)(2) and 25 U.S.C. 3004(b)(2)), and museums and Federal agencies are required to share that information (25 U.S.C. 3005(d)). As required by the Act, additional information is only provided upon request of an Indian Tribe or NHO, and we cannot make this a requirement that applies to all human remains or cultural items absent such a request. In conjunction with that reasoning, we have removed the requirement for lineal descendants, Indian Tribes, or NHOs to first make a request for the duty of care requirements that follow, and we have removed “to the maximum extent possible” from the introductory phrase (see Comment 14). We have revised this paragraph to include paragraphs (d)(1), (d)(2), and (d)(3) on what a museum or Federal agency must do as a part of its more general duty of care for human remains or cultural items. These three requirements align with the purpose of the Act, these regulations, and Congressional intent, which was stated as follows: The [Senate] Committee intends the provisions of this Act to establish a process which shall provide a framework for discussions between Indian [T]ribes and museums and Federal agencies. The Committee believes that the process established under this Act will prevent many of the past instances of cultural insensitivity to Native American peoples. The Committee has received testimony describing instances where museums have treated Native American human remains and funerary objects in a manner entirely different from the treatment of other human remains. Several [T]ribal leaders expressed their outrage at the manner in which Native American human remains had been treated, stored or displayed and the use of culturally sensitive materials and objects in violation of traditional Native American religious practices. In the long history of relations between Native Americans and museums, these culturally insensitive practices have occurred because of the failure of museums to seek the consent of or consult with Indian [T]ribes (S. Rpt. 101-473, at 3). Section 10.1(d)(1) requires museums and Federal agencies to consult on the appropriate storage, treatment, or handling of human remains or cultural items, which was reiterated in the proposed regulations at §§ 10.4, 10.9, and 10.10. In these final regulations, we have revised those specific sections to refer to this paragraph. Section 10.1(d)(2) requires museums and Federal agencies to make a reasonable and good-faith effort to incorporate and accommodate requests made by consulting parties (see Comment 14). Section 10.1(d)(3) requires museums and Federal agencies to obtain consent from consulting parties prior to any exhibition of, access to, or research on human remains or cultural items (see Comment 15-17). 14. Comment: Of the 23 comments requesting we strengthen the duty of care requirements, many requested “deference” replace “to the maximum extent possible.” In addition, all comments objecting to the duty of care requirements raised concerns about the vagueness of this phrase and the potential for conflict between and among consulting parties on the implementation of this phrase. DOI Response: We have removed the phrase and revised § 10.1(d)(2) to require museums and Federal agencies make a reasonable and good-faith effort (in place of “to the maximum extent possible” in the proposed regulations) to incorporate and accommodate the Native American traditional knowledge in caring for human remains or cultural items. As the purpose of the Act and these regulations is the disposition or repatriation of human remains and cultural items, museums and Federal agencies must prioritize requests for storage, treatment, or handling by lineal descendants, Indian Tribes, or NHOs who will be the future caretakers of the human remains or cultural items. These requests may require alterations or exceptions to standard curation or preservation practices. In addition, as noted elsewhere, when consultation on the duty of care does not result in consensus, agreement, or mutually agreeable alternatives, the consultation record must describe the concurrence, disagreement, or nonresponse of the consulting parties. As an example of how this requirement might be implemented, a consulting Indian Tribe might request that an offering of organic material be placed with human remains until repatriation and physical transfer of the collection is complete. During consultation, the museum and Indian Tribe might agree on how to accommodate this request while still protecting and preserving the collection. The resulting agreement might include increased pest monitoring in the area with the offering, enclosing the offering in a glass jar next to the human remains or cultural items, or identifying an alternative location for the offering. As another example of this requirement, a consulting Indian Tribe might request that a particular type of oil or substance be applied to an animal hide that is incorporated into a cultural item. Traditional knowledge indicates that the oil or substance provides both physical and spiritual protection of the cultural item until it is repatriated. During consultation, the museum and Indian Tribe could agree on the appropriate individual, possibly a trained conservator or a Tribal member, and the appropriate method to apply the substance that does not affect other parts of the cultural item or other items in the collection. Other examples of requests a lineal descendant, Indian Tribe, or NHO might make for specific human remains or cultural items in a collection include smudging in a collection storage space; using specific cloth to cover collections; restrictions on who, how, or when collections are handled; orienting collections in a certain direction; storing certain collections separately or storing certain collections together. Each of these requests must be considered in light of other policies or systems, such as safety precautions, fire suppression systems, human resource policies, or space limitations. Through consultation, these requests may be incorporated and accommodated in a mutually agreeable way. Resources from the School for Advanced Research and the American Alliance of Museums are available to assist all parties with these types of discussions and accommodations (“Standards for Museums with Native American Collections,” May 2023, https://sarweb.org/iarc/smnac/, and “Indigenous Collections Care Guide,” publication pending, https://sarweb.org/iarc/icc/, accessed 12/1/2023). 15. Comment: Of the 23 comments requesting that we strengthen the duty of care requirements, many requested that museums and Federal agencies must obtain consent from lineal descendants, Indian Tribes, or NHOs before any activity occurs that involves any Native American collections, but especially prior to allowing access to or research on human remains and cultural items. Some comments requested adding a requirement to remove human remains or cultural items from display or public access. Some comments requested replacing “Limit” with “Prohibit” and include “exhibition of” with “access to and research on” in § 10.1(d)(3). One of the comments objecting to the duty of care requirement stated that a limitation on research conflicted with the requirements for determining cultural affiliation, which requires research. In addition to these comments, 45 comments on provisions for “scientific study” found in Subpart C echoed these requests that the regulations strengthen the protection of human remains or cultural items in holdings or collections. Most of these comments requested that museums and Federal agencies obtain consent from lineal descendants, Indian Tribes, or NHOs prior to allowing any research on human remains or cultural items. The second largest group of comments suggested that museums and Federal agencies must consult with lineal descendants, Indian Tribes, or NHOs prior to allowing research on human remains or cultural items. One comment from a museum and scientific organization requested that the regulations better align with the ethical principles of professional archaeological and anthropological organizations, which call for input, consensus, and informed consent from descendant communities (NPS-2022-0004-0139). One comment from an Indian Tribe explained that research and scientific studies continue to be conducted on human remains and cultural items, despite the repeated requests of Indian Tribes, and this research and study has delayed or even prevented repatriation in some cases. The comment states: We have raised these issues many times at the Congressional level before the Senate Committee on Indian Affairs and before the NAGPRA Review Committee and nothing was done to prevent the illegal study of our relatives or the lengthy delays in their repatriation and reburial. Changes must be made now to prevent any further privileged use of the Act by agencies and museums who have been allowed to ignore the plain speech in the Act regarding the study of our deceased ancestors and their burial property. It is plain to see that agencies and museums have had more than enough time (the 33 years that NAGPRA has existed plus all the decades our relatives sat ignored and collecting dust in museum or agency repositories) to conduct their illegal studies and analyses of our poor deceased relatives and their burial property and insist that steps be taken now to prevent any further studies of our deceased relatives and their burial property (NPS-2022-0004-0123). DOI Response: In response to these comments, we revised § 10.1(d)(3), by replacing “Limit” with “Obtain free, prior, and informed consent” and adding “exhibition of” to “access to or research on human remains or cultural items.” We cannot, as requested by some comments, prohibit exhibition, access, or research on human remains or cultural items as that would exceed the Secretary's authority under the Act and would be contrary to Congressional intent. While the Act is the primary authority for these regulations, Congress authorized the Secretary to make such regulations for carrying into effect the various provisions of any act relating to Indian affairs (25 U.S.C. 9). As the Act is Indian law ( Yankton Sioux Tribe v. United States Army Corps of Engineers, 83 F. Supp. 2d 1047, 1056 (D.S.D. 2000)), the Secretary may promulgate this provision under the broad authority to supervise and manage Indian affairs given by Congress ( United States v. Eberhardt, 789 F. 2d 1354, 1360 (9th Cir. 1986)). Ambiguities in statutes passed for the benefit of Indians are to be construed to the benefit of the Indians ( Bryan v. Itasca County, 426 U.S. 373 (1976)). The Act does not prohibit museums or Federal agencies from conducting scientific studies of human remains or cultural items but does clearly state that such studies are not authorized by or required to comply with the Act (25 U.S.C. 3003(b)(2)). The Act allows for a scientific study to delay, but not to prevent, repatriation (25 U.S.C. 3005(b)). The Act provides only one exception to expeditious repatriation by proving a “right of possession” (25 U.S.C. 3005(c)). In addition, the Act allows for excavation of human remains or cultural items from Federal or Tribal lands for purposes of a study, but only after consultation (on Federal lands) or consent (on Tribal lands) (25 U.S.C. 3002(c)). As a result, there is some ambiguity in the Act related to scientific study, which has been interpreted to mean that the Act neither authorizes nor prohibits scientific study of human remains or cultural items. In exercising the Secretary's authority for these regulations, the Department considered both the legislative and regulatory history related to scientific study of human remains or cultural items subject to the Act, as well as related recommendations from the Review Committee who is responsible for monitoring the repatriation process (25 U.S.C. 3006(c)(2)). The legislative history shows Congress intended for the Act to give lineal descendants, Indian Tribes, and NHOs a more equitable voice in any future scientific study of human remains or cultural items. One central goal of the Act was “to allow for the development of agreements between Indian [T]ribes and museums which reflect an understanding of the important historic and cultural value of the remains and objects in museums collections” (S. Rpt. 101-473, at 4). The Senate Report provided a model of this kind of agreement where a museum agreed to return human remains to an Indian Tribe for burial, and the Indian Tribe chose to bury the human remains in a specially designed crypt that could be opened periodically to provide access for scientists to continue the study of the human remains. Earlier drafts of the legislation allowed for a request for repatriation to be denied if the requested item was part of a scientific study (H. Rpt. 101-877, at 11). In explaining the substitute amendment that ultimately became the Act, Congress explained the change to only delaying, not denying, repatriation for a scientific study was a means of urging “the scientific community to enter into mutually agreeable situations with culturally affiliated [T]ribes in such matters” (H. Rpt. 101-877, at 15). As discussed in Comment 7, in describing the compromises in the final legislation, Representative Campbell stated that the Act acknowledges “that many of these items may be of considerable scientific value” and “that repatriation is not the only alternative.” Representative Campbell recommended “agreeable compromises where all interested parties can benefit from access to some of the items” (136 Cong. Rec. 31938). Similarly, in urging the passage of the bill, Senator Inouye stated “[f]or museums and institutions which have consistently ignored the requests of native Americans, this legislation will give native Americans greater ability to negotiate” (136 Cong. Rec. 35678). This sentiment was echoed by Senator Akaka who stated the Act would, among other things, “eliminate the longstanding policy of scientific research on future remains found” (136 Cong. Rec. 35678). In its final version, the Act used the term “scientific study” twice. First, in describing what documentation may be requested, the Act explicitly and specifically does not require new scientific studies on human remains or associated funerary objects (25 U.S.C. 3003(b)(2), referred to here as “scientific studies are not required”). Second, the Act requires that when a specific scientific study of human remains, associated funerary objects, unassociated funerary objects, sacred objects, or objects of cultural patrimony will result in a major benefit to the United States, a museum or Federal agency may postpone repatriation but may not deny the request for repatriation (25 U.S.C. 3005(b)), referred to here as “delay for scientific study”). The regulations as proposed in 1993 and as promulgated in 1995 addressed only the delay for scientific study under the exceptions to repatriation in § 10.10. The regulations included the statutory language on documentation of human remains at § 10.9 but did not include that scientific studies are not required. The 1995 Final Rule made a reference to both scientific study provisions in responding to one comment that repatriation could not occur until a scientific analysis was completed. The Department responded stating: Section 5 (a) specifies that the geographic and cultural affiliation of human remains and associated funerary objects be determined `to the extent possible based on information possessed by the museum of Federal agency.' No new scientific research is required. Delaying repatriation until new scientific research is completed contradicts the intent of Congress unless that scientific research is considered to be of major benefit to the United States (60 FR 62156). The 2007 Proposed Rule, Disposition of Culturally Unidentifiable Human Remains, added that scientific studies are not required to the paragraph on documentation of human remains at § 10.9. The 2007 Proposed Rule added text to explain (1) any documentation provided is a public record and (2) a request for documentation cannot be construed as authorizing a new scientific study or other means of acquiring information. These additions were drawn directly from the Review Committee's recommendations on culturally unidentifiable human remains (discussed below). In the 2010 Final Rule, Disposition of Culturally Unidentifiable Human Remains, the Department responded to three comments on scientific study specifically. Under General Comments, Comment 3 summarized comments opining that “Congress intended to allow study of ancient, unaffiliated remains.” The Department responded that “The Act does not draw a distinction between `ancient' and more recent remains” and then reiterated that scientific studies are not required (75 FR 12380). Under Section 10.9 Other General Comments, Comment 57 summarized comments that “requested a clear and explicit explanation of how the proposed rule takes into account the potential interests of the public in scientific research and education.” The Department responded that scientific studies are not required (75 FR 12387). In the 2010 Final Rule, under Section 10.9(e)(5) Additional Documentation, Comment 46 summarized 20 comments regarding the addition in the proposed regulations that scientific studies are not required. Some comments stated the language would “create a seemingly impossible conundrum, would severely hinder the scientific study of ancient remains, and are `an obvious attempt to end-run Congressional intent and a Federal court ruling in the long-fought Kennewick Man case.' ” One comment requested language be added to clarify that scientific studies are not prohibited, and another comment requested language be added to allow scientific studies if the consulting parties agree. The largest number of comments requested language stating that human remains must be treated with respect and “should not be subject to any further scientific research or used for teaching purposes.” In response to these comments, the Department simply stated that the language came directly from the Act and reflected Congressional intent (2010 Final Rule at 12386). Since 2010, both provisions on scientific study have been codified in the regulations. While the existing regulations include both provisions on scientific study, the existing regulations do not provide any mechanisms for ensuring that scientific studies are not required or for administering the delay for scientific study. In the 2021 draft revisions of the regulations prepared for Tribal consultation, the Department introduced a procedure, through the Secretary, to administer the delay for scientific study but did not include any reference that scientific studies are not required. We received a significant number of comments regarding both scientific study provisions during Tribal consultation and from the Review Committee. As a result of this input, the proposed regulations included in the duty of care requirement a limitation on “access to or research on” human remains or cultural items which would provide for implementation as well as enforcement that scientific studies are not required. The proposed regulations also provided procedures to administer the delay for scientific study by both requesting and receiving concurrence of the Secretary as a stay of the repatriation timeline under §§ 10.9 and 10.10. In preparing these final regulations, we looked at not only the comments we received on the proposed regulations but also to the legislative and regulatory history discussed above and to input from the Review Committee on these issues. As noted above, the addition to the regulations in 2007 that scientific studies are not required was based on a Review Committee recommendation. Notably, the Review Committee's recommendation was not to include the statutory language, but to clarify that scientific studies must be agreed to by all parties through consultation. In its 2000 final recommendations on culturally unidentifiable human remains, the Review Committee recommended: Documentation must occur within the context of the consultation process. Additional study is not prohibited if the parties (Federal agencies, museums, lineal descendants, Indian [T]ribes, and Native Hawaiian organizations) in consultation agree that such study is appropriate (65 FR 36463, June 8, 2000). Between July 2021 and June 2022, the Review Committee reviewed and discussed the draft regulatory text and, in its final recommendations, developed its own duty of care requirement: Duty of care. Through meaningful consultation with [T]ribes and Native Hawaiian organizations, Federal agencies, museums, universities, and repositories shall provide standards of care based upon the free, prior, and informed consent of [T]ribes and Native Hawaiian organizations for human remains and cultural items. Museums and Federal agencies have an obligation to adhere to a standard of reasonable care while performing any act that would foreseeably harm any cultural item in their possession or control. This duty includes taking affirmative steps to verify the location and condition of all cultural items in the control of the museum or Federal agency, and consulting with any lineal descendants and any culturally or geographically affiliated Indian [T]ribes or Native Hawaiian organizations to determine the standard of care they consider reasonable (NPS-2002-0004-0003, attachment page 2). As noted in the document, one Review Committee member objected to the requirement of “consent” by Indian Tribes or NHOs to the standards of curatorial treatment for Native American human remains and other cultural items. The Review Committee member stated “[s]uch a unilaterally-imposed requirement might not be appropriate or reasonable, and in some circumstances might violate existing binding administrative agreements, legal obligations, and/or professional standards of the curating organization” (NPS-2022-0004-0003, attachment page 2, footnote 1). In preparing the proposed regulations, we adopted the Review Committee's recommendation to include consultation, collaboration, and consent but, in response to the objecting comment, caveated the requirement with “to the maximum extent possible.” The proposed regulations did not include the Review Committee's suggested language of “free, prior, and informed consent” and the last sentence of the Review Committee's recommendation was incorporated directly into Subpart C. In preparing these final regulations, we revisited the Review Committee's recommendations and found we were able to incorporate the concept of “free, prior, and informed consent” by clarifying the provisions in § 10.1 pertaining to duty of care. Paragraph (d)(1) requires consultation, paragraph (d)(2) requires collaboration, and paragraph (d)(3) requires consent. We agree with the Review Committee member and some of the comments on the proposed regulations that curatorial standards and other requirements may limit a museum or Federal agency's ability to incorporate or accommodate requests from lineal descendants, Indian Tribes, or NHOs, and, as discussed in Comment 14, museums and Federal agencies must make a reasonable and good-faith effort to do so. We have limited the requirement to obtain consent only to the exhibition of, access to, or research on human remains and cultural items. As the purpose of the Act and these regulations is the disposition or repatriation of human remains or cultural items, we find it appropriate that museums and Federal agencies must obtain consent from lineal descendants, Indian Tribes, or NHOs before conducting activities that might physically or spiritually harm human remains or cultural items. For purposes of the duty of care paragraph, the lineal descendants, Indian Tribes, or NHOs are those identified as consulting parties under §§ 10.4(b)(1), 10.9(b)(1), and 10.10(b)(1): Consulting parties are any lineal descendant and any Indian Tribe or NHO with potential cultural affiliation. If a museum or Federal agency cannot identify any consulting parties for specific human remains or cultural items, the duty of care requirement still applies. Until consulting parties are identified, the museum or Federal agency may not be required to consult under paragraph (d)(1) or collaborate under paragraph (d)(2) of § 10.1. Until consulting parties are identified, the museum or Federal agency must not allow any exhibition of, access to, or research on human remains or cultural items as doing so may be subject to a failure to comply with the requirements of these regulations. If a museum or Federal agency wished to conduct a specific scientific study of human remains or cultural items, it could do so by following the requirements for a stay of repatriation under §§ 10.9 or 10.10. After following the requirements of these regulations, nothing would preclude a museum or Federal agency from exhibiting, allowing access to, or conducting research on collections that are not subject to the Act or, after disposition or repatriation, reaching an agreement with the requesting lineal descendant, Indian Tribe, or NHO. 16. Comment: We received four comments requesting the regulations include in § 10.10 the related statutory language from 25 U.S.C. 3003(b)(2) on “scientific study.” Another comment questioned if “scientific study” as used in §§ 10.9 and 10.10 equated to a single study that records paleopathology on an individual or a long-term archaeological project at a site that includes many sub-projects that study different bioarcheological and physical anthropological topics. DOI Response: We incorporated the statutory language on “scientific study” into paragraph (d)(3) by adding two sentences to clarify that the term “research” as used here equates to the term “scientific study” in the Act and to emphasize that “research” of any kind is not required by the Act or these regulations. We have defined “research” to mean any study, analysis, examination, or other means of acquiring or preserving information. “Research” includes any activity to generate new or additional information beyond the information that is already available, for example, osteological analysis of human remains, physical inspection or review of collections, examination or segregation of comingled material (such as soil or faunal remains), or rehousing of collections. “Research” is not required to identify the number of individuals or cultural items or to determine cultural affiliation. For example, if a museum wished to physically examine its collection to identify the number of individuals or associated funerary objects, the museum must first obtain consent from lineal descendants, Indian Tribes, or NHOs. Until that consent is obtained, the museum must rely on the information available (previous inventories, catalog cards, accession records, etc.) to identify consulting parties, conduct consultation, update the inventory, and submit a notice of inventory completion. If a Federal agency wished to examine an unprocessed collection of archaeological material excavated from Federal land after 1990 to identify if any human remains or cultural items were present, it could do so until human remains or cultural items were identified. At that time, any further examination or inspection of the collection would require obtaining consent from a lineal descendant, Indian Tribe or NHO. Until that consent is obtained, the Federal agency must rely on the information available (excavation location, field notes, etc.) to identify consulting parties, conduct consultation, and complete the disposition of the human remains or cultural items. 17. Comment: We received five comments, including those by the Review Committee, objecting to the inclusion of unassociated funerary objects, sacred objects, or objects of cultural patrimony in the delay for scientific study because it is inconsistent with the Act and adverse to Tribal interests. These comments requested that the stay of repatriation in § 10.9 for “scientific study” be deleted in its entirety (see NPS-2022-0004-0096; NPS-2022-0004-0143; NPS-2022-0004-0151; NPS-2022-0004-0177; and NPS-2022-0004-0183). DOI Response: We believe these comments conflated the two statutory provisions for “scientific study” we outlined in response to Comment 16 (“scientific studies are not required” and “delay for scientific study”). We agree that the Act limits the provision that scientific studies are not required to only human remains and associated funerary objects (25 U.S.C. 3003(b)(2)). Similar language does not appear in the Act for unassociated funerary objects, sacred objects, and cultural patrimony (25 U.S.C. 3004(b)(2)). We do not agree, however, that extending the provision that scientific studies are not required or the corresponding paragraph at (d)(3) to unassociated funerary objects, sacred objects, or objects of cultural patrimony is adverse to Tribal interests. Rather, we feel this extension accomplishes the request made by many individuals, Indian Tribes, and Native American organizations to prohibit all “research” on human remains as well as any cultural item (see NPS-2022-0004-0107; NPS-2022-0004-0138; NPS-2022-0004-0158; NPS-2022-0004-0161; and NPS-2022-0004-0187). Therefore, paragraph (d)(3) on duty of care that requires consent for exhibition, access, or research applies to human remains, associated funerary objects, unassociated funerary objects, sacred objects, and objects of cultural patrimony. We understand that the delay for scientific study in both §§ 10.9 and 10.10 is adverse to Tribal interests and may seem to allow or authorize scientific studies. As one comment stated clearly: Finally, please note our previous statement that we are categorically opposed to any scientific study of our ancestors, their burial property or any item of our sacred or cultural patrimony and we specifically request that any language allowing any type of scientific study of any NAGPRA-related item be stricken from this rulemaking for the reasons submitted by our Nation, above (NPS-2022-0004-0123). We cannot remove reference to “scientific study” or research from these regulations. The delay for scientific study applies to all “Native American cultural items,” which are defined in the Act as human remains, associated funerary objects, unassociated funerary objects, sacred objects, and objects of cultural patrimony (25 U.S.C. 3005(b)). As any elimination or restriction of 25 U.S.C. 3005(b) would require an act of Congress, we cannot remove the reference to “scientific study” entirely or make the requested change to remove § 10.9(i)(3). We have, however, strengthened the requirements under duty of care in this final rule to ensure better implementation and enforcement that scientific studies are not required. 18. Comment: We received three comments requesting clarification of § 10.1(e) Delivery of written documents. One comment requested an editorial change to the text and the other two comments requested an explanation of proof of receipt. One comment stated that tracking the sending and receipt of written documents was a considerable burden on all parties and would require a significant outlay of resources (NPS-2022-0004-0135). DOI Response: We have made the requested editorial change to paragraph (e)(1) and added “one of the following” to “must be sent by.” Regarding “proof of receipt” for email, many email systems include an option to request a read receipt automatically. While these systems may not constitute legal proof, use of such systems is sufficient for the purposes of these regulations. If an email system does not provide this option, other software or services can provide proof of receipt for little to no cost. However, we do not expect or require additional software or services to meet this requirement. The minimum requirement to satisfy “proof of receipt” would be to request that the recipient acknowledge receipt of the email. If no acknowledgment is received, the sender may follow up with a phone call to ensure the email was received. A call log or note to the file would be sufficient “proof of receipt.” 19. Comment: We received four comments suggesting changes to § 10.1(f) Deadlines and timelines. One comment noted that Tribal holidays may not coincide with Federal holidays and should be included. Another comment requested this paragraph clarify that the Federal Register calculates calendar days. One comment questioned how the Manager, National NAGPRA Program, will meet the notice publication deadline if there is a lapse in appropriations. One comment specifically questioned the use of business days in relation to the requirements under § 10.5 and stated that under the Act, “days” means calendar days. By using business days, the total maximum work stoppage under § 10.5 could increase to some 95 calendar days. In enacting the 30-day stop-work period, Congress said “days,” which is commonly understood as calendar days. Similarly, Rule 6(a) of the Federal Rules of Civil Procedure provides that, in computing any time period specified in the Rules, in any local rule or court order, or in any statute that does not specify a method of computing time, when a period is stated in days or a longer unit of time, every day is counted, including intermediate Saturdays, Sundays, and legal holidays. Furthermore, the comment states, except for using three “working days” for the ministerial certification of receipt of a notice of discovery, the Department has always used calendar days as the metric for calculating a period in the existing regulations stated in days or a longer unit. DOI Response: We agree that in the Act, days means calendar days. We appreciate the comment on Tribal holidays, but given the great variation in those dates, we cannot accommodate the request to include or observe Tribal holidays. The purpose of this paragraph is to provide clear instruction on how to calculate dates for the deadlines and timelines in these regulations. Earlier drafts of these regulations used calendar days. We received requests during consultation in 2021 to use business days and to account for a lapse in appropriations. We noted this change would lengthen most deadlines in the regulations but accepted the suggested change in the proposed regulations. We have revised paragraph (f)(1) in § 10.1 to calendar days and included an exception for when a deadline falls on a Saturday, Sunday, or Federal holiday, including a lapse in appropriations. 20. Comment: We received seven comments suggesting changes to § 10.1(g) Failure to make a claim or a request. Five comments requested we delete this paragraph because the Act does not provide the Secretary with the authority to include this waiver of rights language in the regulations. These comments state that an Indian Tribe or NHO must never lose its rights to claim disposition or request repatriation of human remains or cultural items. One comment requested clarification and guidance on the application of this paragraph to the time between sending a repatriation statement and completing physical transfer of human remains or cultural items. One comment requested the regulations require clear and concise written proof of compliance with the notice and consultation requirements prior to any waiver of a right to make a claim or a request. DOI Response: The Secretary's authority for promulgating these regulations is discussed extensively in the 2010 Final Rule (75 FR 12379) and the 2022 Proposed Rule (87 FR 63207). The purpose of a disposition or repatriation statement is to provide clear and concise written proof that the requirements of the Act have been fulfilled (25 U.S.C. 3002(a) and 3005(a)). With the disposition or repatriation statement, the museum or Federal agency divests itself of any interest in the human remains or cultural items. We cannot remove this paragraph without jeopardizing the entire disposition or repatriation processes provided by the Act and these regulations. This paragraph has been included in these regulations since the 1993 Proposed Rule (58 FR 31132) and ensures that any claim for disposition or request for repatriation must be considered by a museum or Federal agency prior to disposition, repatriation, transfer, or reinterment of human remains or cultural items. Once disposition, repatriation, transfer, or reinterment occurs, a museum or Federal agency cannot accept a claim or request from another party as the museum or Federal agency no longer has any rights to or interest in the human remains or cultural item. This paragraph provides protection for lineal descendants, Indian Tribes, and NHOs as well as for museums and Federal agencies that once a disposition or repatriation statement is sent, it is not subject to future appeal or challenge. 21. Comment: We received four comments suggesting changes to § 10.1(h) Judicial jurisdiction. Three comments requested we include the role of the U.S. Court of Federal Claims in resolving specific matters. One comment asked if this paragraph restricted the role of Tribal courts in any related legal actions. DOI Response: Nothing in the Act or these regulations is intended to abrogate any concurrent Tribal jurisdiction that may exist with respect to alleged violations of similar Tribal laws on Tribal lands. Regarding the U.S. Court of Federal Claims, we disagree with the suggested change. This paragraph reflects the statutory description of judicial jurisdiction for violations of the Act (25 U.S.C. 3013). It is not intended to address judicial jurisdiction for potential constitutional violations, such as the possibility of a Fifth Amendment taking as described in the Act's definition for “right of possession” (25 U.S.C. 3001(13)). It is unnecessary for these regulations to address the Court of Federal Claims' jurisdiction over Fifth Amendment takings claims, which is well-established and not specific to this Act. Regarding collection of civil penalties, this is already included in § 10.11, specifically in paragraph (m)(2) of these regulations. 22. Comment: We received 19 comments suggesting changes to § 10.1(i) Final agency action. Four comments requested clarification as to how to interpret final agency action and confirming that disposition or repatriation determinations are final agency actions. Four comments considered the categories of final agency action to be too narrow as written and recommended adding language to clarify and including examples of determinations that would make this part inapplicable, such as determinations regarding plans of action, excavations, Federal land ownership, and possession or control. On the other hand, one comment described how those categories of final agency action impermissibly broaden the concept. Six comments urged the Department to approve all museum determinations under these regulations or compel museum action, and that such approval or failure to compel should be defined as final agency action. Four comments recommended that the Assistant Secretary's decision not to assess a civil penalty be considered reviewable as final agency action. DOI Response: The Act does not grant the Secretary authority to approve or compel museum determinations, other than by assessing civil penalties for failures to comply. Regarding civil penalties, we have not made changes that would make decisions to assess civil penalties reviewable as final agency action because, first, the Act makes this decision permissive, not required, and second, such decisions are comparable to those in a criminal context ( United States v. Halper, 490 U.S. 435 (1989)) and generally considered unreviewable under the Administrative Procedure Act in order to preserve prosecutorial discretion ( Heckler v. Cheney, 470 U.S. 821 (1985)). While we appreciate the remaining recommendations, we believe that the concerns underlying each are already addressed by the language as it appeared in the proposed regulations. First, the inclusion of any final determination making the Act or this part inapplicable is intentionally broad and inclusive enough to capture the examples and other regulatory actions described in the comments. Second, at the same time, because this determination must be final, because it is on its own terms limited to situations where the information available to the Federal agency has informed the determination that the Act or this part is inapplicable, and because the determination in question is specific to the application of this Act or this part, the category is sufficiently limited in scope so as to ensure consistency with the Administrative Procedure Act. The Department does not consider this language in these regulations to redefine final agency action, but only to clarify its existing application across the entirety of the Act and this part. In addition, we have added a paragraph (k) to this section on severability. While this rule is intended to create systematic processes for implementing the Act, if a court holds any provision of one part of this rule invalid, it should not impact the other parts of the rule. For example, a decision holding a portion of Subpart B invalid should not impact Subpart C, since they are two separate processes for two different situations. Similarly, a decision holding part of the inventory process invalid should not impact the summary or repatriation processes. Any decision finding any provisions in this rule to be invalid would not impact the remaining provisions, which would remain in force. The intent of this rule is to streamline the processes and increase deference to lineal descendants, Indian Tribes, and NHOs as a whole, but the rule is not an interdependent whole—other provisions of the rule would implement that intent even if a court declared certain provisions invalid. C. Section 10.2 Definitions for This Part 23. Comment: We received four comments requesting we add new definitions. Three comments requested we define “deference.” One comment requested we define “simple itemized list,” “lot,” and “specific area” for funerary objects. DOI Response: We have not defined “deference” in these regulations. As used in these regulations, this term is intended to ensure meaningful consideration of Native American traditional knowledge of lineal descendants, Indian Tribes, and NHOs throughout the systematic processes for disposition and repatriation. The term should be understood to have a standard, dictionary definition: “respect and esteem due a superior or an elder; also affected or ingratiating regard for another's wishes” (Merriam-Webster definition of “deference” https://www.merriam-webster.com/dictionary/deference, accessed 12/1/2023). The requirement for deference is not intended to remove the decision-making responsibility of a museum or Federal agency under the Act or these regulations but is intended to require that a museum or Federal agency recognize that lineal descendants, Indian Tribes, and NHOs are the primary experts on their cultural heritage. We believe the application of deference in these regulations is clear, and we have reinforced its application through changes to paragraphs in § 10.1(a) Purpose and (d) Duty of care and in the definition of “consultation” below. We do not believe it is necessary to define “simple itemized list,” “lot,” or “specific area.” Each of these terms should be understood to have a standard, dictionary definition, and when a museum or Federal agency is trying to apply them, we note that consultation with lineal descendants, Indian Tribes, or NHOs should inform that decision. 24. Comment: We received six comments supporting the definitions in the proposed regulations. These comments appreciated that the definition of “cultural item” (and the definitions of specific kinds of cultural items) included language that recognizes lineal descendants, Indian Tribes, and NHOs are the primary experts on their own cultural heritage. One comment requested these definitions be further strengthened by requiring museums and Federal agencies defer to the determination of the lineal descendant, Indian Tribe, or NHO. Similar comments were repeated in each of the definitions of specific kinds of cultural items. DOI Response: We have retained the language in the definition of “cultural item,” “funerary object,” “sacred object,” and “object of cultural patrimony.” We have not added a requirement for deference to the determinations of lineal descendants, Indian Tribes, or NHOs as it would be inconsistent with the Act. Museums and Federal agencies are responsible for making determinations under the Act and these regulations, but must do so after consulting with lineal descendants, Indian Tribes, and NHOs. We have changed the order of the sentences to reflect the importance of Native American traditional knowledge (which includes customs and traditions) in these definitions. Furthermore, we have strengthened the application of these definitions through changes to paragraphs in § 10.1(a) Purpose and (d) Duty of care and in the definition of “consultation” below. 25. Comment: We received 21 comments on the proposed definitions of “acknowledged aboriginal land” and “adjudicated aboriginal land.” Of that total, 13 comments suggested changes to the definitions while eight comments supported both definitions as proposed. DOI Response: Due to the changes to the definition of “cultural affiliation,” we are not finalizing the proposed definitions of aboriginal land in this rule. We believe the changes to cultural affiliation address the concerns expressed by the comments and ensure consultation on and consideration of information about aboriginal occupation in determining cultural affiliation. We have replaced “adjudicated aboriginal land” in the regulatory text with the elements of the definition. 26. Comment: We received 21 comments on the definition of “affiliation.” Of that total, 14 comments suggested changes to the definition while seven comments supported it. One comment questioned if the Secretary has the authority to alter a definition in the statute and opposed the generalized and simplistic meaning of “affiliation.” The other comments requested that the definition of “affiliation” be used to define “cultural affiliation.” DOI Response: We agree with the suggestion to add “cultural” before affiliation in this definition. We have clarified this definition by incorporating the Congressional intent of this definition “to ensure that the claimant has a reasonable connection with the materials” (H. Rpt. 101-877, at 14, and S. Rpt. 101-473, at 6). The additional language [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2023-27040. Public record. Not legal advice.